HKSAR v. Lee Wai Kin

[English Translation - 英譯本]

HCMA 244/2022

[2023] HKCFI 1723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CASE STATED

MAGISTRACY APPEAL NO 244 OF 2022

(ON APPEAL FROM WKCC 1241 OF 2020)

_______________________

________________________

_______________________

JUDGMENT

_______________________

A.  Background

1.The Respondent was charged with one count of “Possession of offensive weapon in public place”, contrary to section 33(1) and (2) of the Public Order Ordinance, Cap. 245, Laws of Hong Kong. The Respondent pleaded not guilty to the charge and was found not guilty after trial by magistrate LAM Tsz Kan (the Magistrate) in the West Kowloon Magistracy.

2.The Appellant appealed by way of case stated pursuant to section 105 of the Magistrates Ordinance, Cap. 227, Laws of Hong Kong.

B.  Facts of the Case

B.1.  Prosecution Case

3.The prosecution case revealed that at 05:45 hours on 2 September 2019, on Hing Fong Road, Kwai Chung, police officers put the Respondent under observation. He was in a fast food shop with two other persons. Once the trio left the fast food shop, the police officers stopped and searched them.

4.The police officers found a spanner (Exhibit P2) and a hiking stick (Exhibit P3) from the Respondent’s backpack. There were also the following items in the backpack:

(a)  a helmet;

(b)  a pair of safety goggles;

(c)  a pair of swimming goggles;

(d)  a respirator;

(e)  a pair of gloves;

(f)  a pair of long sleeves;

(g)  six packets of saline;

(h)  a baseball cap;

(i)  a white T-shirt;

(j)  a nylon bag; and

(k)  a mobile phone.

5.The police officers arrested the Respondent for “Possession of an offensive weapon”. Under caution, the Respondent said he used the spanner for self-defence and for guarding the nearby Lennon Wall.

6.Subsequently, the police officers conducted a video-recorded interview with the Respondent. He explained that “self-defence” was for himself and the two “buddies” arrested together with him as they were in fear of being attacked by “knifers” and assailants “armed with clubs”. He took the spanner from one of the arrested “buddies” for self-defence lest he be hit by the “men in white”.

7.The Respondent explained[1] each of the remaining articles found in his backpack. The hiking stick found in the backpack was also for “self-defence”. If he came across any “men in white” holding a knife or a club, the Respondent could take the hiking stick out of his backpack to “shield” himself and to avoid using force so as to leave safely without resorting to violence.

B.2.  Defence Case

8.The Respondent chose not to give evidence nor call any witnesses. The defence essentially relied on the contents of the cautioned statements.

C.  Magistrate’s Findings

9.The Magistrate’s findings after analysis are as follows:

“41. In considering the case, I remind myself that the burden of proof beyond reasonable doubt is on the prosecution. The Respondent is not obliged to prove his innocence. I also take heed that the Respondent has a clear record; thus a direction[2] on his credibility and propensity to commit a crime to his favour has been given.

42. The Respondent’s confession contains a mixed statement, i.e. incriminating and exculpatory parts. I consider the contents of the entire confession in accordance with the principles of the relevant case law. I also apply a favourable assessment of the Respondent’s credibility to the exculpatory part[3]of his confession.

43. In the present case, it is not in dispute that the Respondent was in possession of the spanner and the hiking stick in question in a public place. The crux of the matter in the dispute was whether the spanner and the hiking stick were offensive weapons[4].

44. Section 2 of the Public Order Ordinance provides that an offensive weapon “means any article manufactured or adapted to be used, or suitable for use, for the purpose of inflicting injury on another person, or any article intended by the person having possession or control of it to be used by him or by another person for such purpose”. The definition of ‘article fit for use to injure’ has been held by case law to be invalid and can no longer be invoked, and the prosecution has confirmed that the articles in question were not ‘manufactured or adapted for use to injure’. Therefore, the only issue to be considered is whether the Respondent had possession of the articles in question with the intent to injure others. According to the relevant case law, in deciding this issue, I need to consider the nature and condition of the articles themselves, the circumstances surrounding the accused’s possession of the articles, such as the time and place, the proper and reasonable use of the articles at that time and place, whether the articles were hidden, the accused’s behaviour and demeanour at that time, and the accused’s reaction to being discovered or questioned and so on[5].

45. In the present case, the relevant articles had all along been kept inside the Respondent’s backpack. The Respondent, under observation, had only gone to a fast food shop. He did not take the articles out nor used them. Therefore, the prosecution has to rely on the confession of the Respondent to establish a case to support the intent to injure with the articles. I will now further analyse the confession of the Respondent[6].

46. The Respondent’s oral confession and supplementary statement all stated that the spanner was for “guarding the Lennon Wall”, “self-defence” or “protecting himself”. I opine that words like “guarding the Lennon Wall”, “self-defence”, “protecting himself” and the like all lacked details. The Respondent did not explain in detail how to protect himself and how to guard the Lennon Wall. The prosecution needs to prove that the use of the articles to injure is the only reasonable inference, but the above confessions are equivocal and can lead to many inferences, so the Respondent’s confessions do not help the prosecution case[7].

47. Not only that, the Respondent also explained in detail the meaning of “self-defence” in the video-recorded interview. In entries 41 to 44, the Respondent said that he was afraid that knifers or assailants armed with clubs would attack him, and that he could use the articles to shield himself. In entries 131 to 132, the Respondent also said that he was afraid of being beaten by those people in white so he borrowed a spanner from his friend. In entries 273 to 275, the Respondent also said that in order to avoid being attacked by the men in white armed with knives, he would take out his hiking stick to shield himself. If the men in white were armed with clubs, he could use it to fend it off, for avoiding the use of violence, and to leave in a safe condition[8].

48. In the above entries, instead of stating that the articles were used to injure others, the Respondent even provided a statement that the articles in question were only used to fend off an attack or to enable everyone to leave in a safe condition without using violence. Giving weight to this exculpatory statement, I am of the view that the prosecution has failed to prove beyond reasonable doubt that the Respondent possessed the articles in question with the intent to injure another person. I therefore find the Respondent not guilty of the charge[9].”

D.  Legal Issues

10.Pursuant to section 105 of the Magistrates Ordinance, the Magistrate stated the case for the advice of a Court of First Instance Judge of the High Court on the following questions of law:

(a)  In considering whether the Respondent’s possession of the spanner and the hiking stick in question was with intent to injure, is it legally necessary for the Magistrate to take into account the following matters in giving weight to the Respondent’s exculpatory statement? If the court must consider the following matters, has it considered the following matters? If not, is it legally correct to do so?

i.     Is the Respondent under an imminent particular threat (see Wong Christopher Milton v HKSAR[10])?

ii.    Did the Respondent genuinely expect an imminent attack (see Wong Christopher Milton above[11])?

iii.   Was the Respondent’s act of carrying the articles in question reasonable at an objective level (see Wong Christopher Milton[12] above)?

iv.   Was the Respondent’s claim of in fear of being attacked well founded (see Wong Christopher Milton[13] above)?

v.    Did the Respondent and his two “buddies” arrange to meet at the Lennon Wall already in anticipation of a confrontation with others in the vicinity of the Lennon Wall (See Secretary for Justice v Szeto Ho-san[14])?

(b)  In considering whether the Respondent’s possession of the spanner and hiking stick in question was with intent to injure, was it legally necessary for the Magistrate to take into account the other articles in the Respondent’s backpack? If so, had the Magistrate taken into account the fact that other articles including but not limited to a helmet, a pair of safety goggles, a pair of swimming goggles, a respirator, a pair of gloves, a pair of long sleeves and six packets of saline were found in the Respondent’s backpack at the same time? If not, was it legally correct? If the other items in the backpack were taken into account, was the Magistrate’s finding (i.e. that the prosecution had failed to prove beyond reasonable doubt that the Respondent had the intent to injure) impossible to reach? Was it “perverse”?

(c)  In considering whether the Respondent’s possession of the spanner and the hiking stick in question was with intent to injure, did the Magistrate take into account the other statements made by the Respondent in the video-recorded interview, including but not limited to the following? If not, was it legally correct? If other statements made by the Respondent in the video-recorded interview were taken into account, including but not limited to the following, was the Magistrate’s finding (i.e. that the prosecution had failed to prove beyond reasonable doubt that the Respondent had the intention to injure) impossible to reach? Was it “perverse”?

i.     The Respondent indicated that he carried a blue bag with a drawstring for his helmet and respirator[15];

ii.    the Respondent stated that he carried a pair of gloves to avoid leaving any fingerprints to prevent the police from collecting evidence[16];

iii.   the Respondent stated that he carried a pair of swimming goggles to protect his eyes when the police fired tear gas[17];

iv.   the Respondent indicated that he carried a pair of safety goggles for the purpose of covering his swimming goggles[18];

v.    the Respondent stated that he carried a 3M respirator to avoid inhaling tear gas[19];

vi.   the Respondent indicated that he carried a helmet to avoid being hit by bullets or stray bullets[20];

vii.  the Respondent said that he carried six packets of saline for use on his eyes in case of bleeding or being hit by tear gas[21];

viii. the Respondent stated that the above helmet, goggles and “hog snout” were obtained by him at a supply depot of a protest more than half a month ago[22];

ix.   the Respondent admitted that he left his home at about 0245 hours on the material day and wore a black shirt, black pants and flip-flops until he was arrested[23]; and

x.    as early as about 2300 hours on 1 September 2019, the Respondent had called and asked his “buddies” who had been arrested in the same case to lend him the spanner involved in the case and indicated that he wanted to borrow some tools for self-defence lest something should happen[24].

(d)  In considering the Respondent’s mixed statement, whether the Magistrate had followed the guideline in R v Sharp[25] and HKSAR v Poon Hoi Wing[26] that, in law, both the incriminating and exculpatory parts of a mixed statement are admissible as evidence of their truth in court. If a statement contains both incriminating and exculpatory parts, it does not mean that the court has to give equal weight to both parts. On the contrary, the court may regard the incriminating part as more likely to be true and give it greater weight, while the exculpatory part, being self-serving defence, worthy given less or little weight, or even no weight at all? And in considering the case, if the above cases are followed, is it true that the Magistrate in this case could not give any weight to the exculpatory part of the mixed statement?

(e)  In any event, in finding that the Appellant failed to prove beyond reasonable doubt that the Respondent was in possession of the spanner and the hiking stick with intent to injure, whether the Magistrate had failed to properly consider, analyse and evaluate all evidence that should have been considered; and whether the Magistrate wrongly considered and accepted matters that should not have been considered. And, as stated by the Court of Final Appeal in Li Man Wai v Secretary for Justice[27], the conclusion or finding of facts reached by the Magistrate was one that no reasonable magistrate, having due regard to the elements to be considered and giving himself proper directions, could possibly have reached, which was a “perverse” conclusion or finding?

D.1    Revised Legal Issues

11.In view of the rather lengthy and complex questions of law set out by the Magistrate, I now simplify the questions of law as follows:

(1)  When the Magistrate was considering whether the Respondent’s possession of the articles in question (i.e. the spanner and the hiking stick) was with intent to injure:

(a)  Insofar as the Respondent claimed that it was used for “self-defence”, has he failed to give due consideration to the legal principles underlying this defence?

(b)  Did he fail to give due consideration to the other items kept in the Respondent’s backpack at the material time?

(c)  Did he fail to give due consideration to other statements made by the Respondent in the video-recorded interview?

(2)  Did the Magistrate follow the guidelines in R v Sharp and HKSAR v Poon Hoi Wing in considering the Respondent’s mixed statements? (Original question (d));

(3)  Was the conclusion reached by the Magistrate “perverse”? (Original question (e))

D.2   Relevant Legislation and Legal Principles

12.Section 33(1) of the Public Order Ordinance provides:

“(1) A person who, without lawful authority or reasonable excuse, carries any offensive weapon in any public place commits an offence and is liable on summary conviction or on indictment to a penalty in the manner specified in subsection (2).”

13.According to the definition in section 2(1) of the Public Order Ordinance, an offensive weapon is defined as “any article manufactured or adapted to be used, or suitable for use, for the purpose of inflicting injury on another person, or any article intended by the person having possession or control of it to be used for such purpose by that person or by another person”.

14.The Court of Appeal in R v Chong Ah Choi[28]had already held that the part of the definition of “articles fit to do harm” did not apply because it contravened the Hong Kong Bill of Rights Ordinance.

15.In the present case, the prosecution clearly accepted that the spanner and the hiking stick in the Respondent’s possession were not manufactured or adapted to be used for the purpose of inflicting injury on another person, and it was therefore necessary for the prosecution to prove that the Respondent was in possession of the items in question with the intention that they should be used by himself or by another person for the purpose of inflicting injury on another person.

16.In considering whether the Respondent had a relevant intention, the court should consider all the circumstantial evidence and decide whether the only reasonable inference to be drawn was that the Respondent had a relevant intention (Chong Ah Choi).

17.Albert Wong J of the Court of First Instance of the High Court in HKSAR v Chan Yiu Shing[29] translated the above relevant passage from Chong Ah Choi as follows:

“In R v Chong Ah Choi, the Court of Appeal stated that in considering whether the required inference may be drawn, the court is entitled to have regard to the following matters:

(1) the nature and condition of the article itself;

(2) the circumstances surrounding the accused’s possession of the articles in question, including the time and place, the probable just and reasonable use of the article at that time and place, whether the article was in his possession, the accused’s behaviour at the time, his reaction to being found or questioned, etc.”

18.The court may draw inferences from circumstantial evidence and may combine the cumulative weight of relevant evidence, for example, by drawing an inference of guilt from the braiding of several thin ropes into a thick rope (HKSAR v TSANG Chi-wai[30]), or the court may “eliminate all other possibilities by a cumulative accumulation of geometrical gradations” (HKSAR v SHY[31]).

E.  Appellant’s Submission

19.On behalf of the Appellant, Mr. Edward LAU Wan Cheung, Senior Public Prosecutor adopted the written submissions of Ms. Laura NG Shuk Kuen, Acting Senior Assistant Director of Public Prosecutions and of his own pointing out that the Magistrate, while being aware of the need to consider the relevant issues set out under Chong Ah Choi, had not taken into account the full extent of what the Respondent said at the video-recorded interviews and the objective facts.

20.The Appellant’s submission that, according to the Respondent’s own account, he and two of his like-minded “buddies” arrived at the Lennon Wall at around 5:00 a.m. to “be keeping an eye on” the wall and “to see if there were any people around” was clearly an explanation of how he had been “guarding” the Lennon Wall in order to prevent others from tearing down or interfering with the propaganda or information affixed to the Wall, and so on. It could be inferred from this that if someone did so, the Respondent or his “buddies” would certainly come forward to stop him, and he expected that there would be a verbal confrontation or even violence, so he had to be armed. It was therefore clear that his possession of the articles in question was not for self-defence. The Respondent’s explanation that he needed the spanner and the hiking stick to protect himself was totally unsupported by facts and was untenable.

21.On the other hand, even if the Respondent genuinely felt the need to carry the articles for self-defence, the court could infer from the purpose of the so-called “self-defence” and from the objective facts that the possession of the spanner and the hiking stick must have been intended to be used for the purpose of inflicting injuries on others by himself or his “buddies”.

22.On questions of law, the Appellant used different words from those used here, but essentially dealt with the issues raised by the questions.

F.1    Question 1(a): The Magistrate did not consider that it was not necessary for the Appellant to carry the articles in question for self-defence

23.The Appellant cited Wong Christopher Milton v HKSAR[32] in which the Court of Final Appeal ruled that for the offence of “possession of an offensive weapon in a public place”, the court should take into account different factors in determining whether the Appellant had a reasonable excuse when considering a defendant’s claim of possession for self-defence. The Court of Final Appeal emphasized that self-defence only constitutes a reasonable excuse for carrying an offensive weapon if there is an imminent threat affecting the circumstances in which the person carries the weapon. The defendant must have genuinely anticipated an imminent attack and the fear must be well founded. In addition, the person’s conduct in carrying the weapon in question must be reasonable from an objective point of view.

24.In the Appellant’s submissions, the Respondent claimed under caution that he was in possession of the spanner and the hiking stick for self-defence and for guarding the nearby Lennon Wall, which showed that he must have anticipated a violent confrontation with others, including being beaten by the “men in white”. It was evident that the Respondent anticipated a violent confrontation to occur, and under such circumstances, the Respondent purposely carried the hiking stick and told his “buddies” to bring along the spanner to the scene certainly in anticipation that they would be used in a violent confrontation, and intended to be used by the Respondent himself or his “buddies” to injure others.

25.The Appellant pointed to numerous cases that clearly stated that the court might find that a defendant had possession of an article with intent to injure notwithstanding that he claimed to have possessed the article for self-defence.

26.The Appellant cited Patterson v Block[33] and HKSAR v Fung Kam Dick Andrew[34] for the proposition that even if a defendant is in possession of an article which is not itself intended to be used as an offensive weapon, the court may find that he intends to use it to inflict injury on the basis of the defendant’s assertion that he is carrying it for the purpose of self-defence.

27.The Appellant also cited HKSAR v Chan Ming Lok[35], in which the court relied on the defendant’s statement of “self-defence” to draw an inference of intent to injure, even though the defendant claimed to have possessed the article for self-defence.

28.The Appellant cited the judgment in Secretary for Justice v Szeto Ho Sun[36]:

“25.    This case took place at a time when there were serious social conflicts, and there were many instances of wanton assault and criminal damage. The respondent was wearing a black mask, carrying a black backpack containing two metal clubs and a pair of black gloves. The respondent said “they would be taken out for self-defence for fear that conflicts would arise should he bump into people with different political views”. Imagine if the respondent had really gone to the Shatin Town Hall to practise dancing with his friends, which was not the scene of conflicts, and if there were conflicts, why would he think that he would bump into people with different political views and have conflicts with people with different political views? If there were conflicts, why did he not leave the scene immediately, but instead took out his weapons to attack others when necessary? From these questions, it can be seen that the respondent expected that he would be in a conflict with people of different political views, and so he was well prepared by going out equipped with the two metal clubs.”

The Appellant alleged that this case also occurred at the climax of the 2019 social conflicts. The Respondent and his two “buddies” arranged to go to the Lennon Wall, well prepared in anticipation of a confrontation with others nearby the Lennon Wall. Therefore, the only reasonable and irresistible inference that the Respondent intentionally carried the hiking stick and told his “buddies” to bring the spanner to a place where a violent confrontation might occur was that the Respondent possessed the spanner and the hiking stick with the intent that they be used by himself or his “buddies” for the purpose of inflicting injuries on others.

29.There was no evidence in this case that the Respondent was under some kind of imminent threat or foresaw an imminent attack. Thus, he did not have any reasonable excuse for carrying the hiking stick and asking someone to bring along a spanner to the scene.

30.The Appellant alleged that under the above circumstances, the Respondent still carried the hiking stick, asked others to take a spanner to him, exposed himself in a place where a violent confrontation was likely to take place and claimed self-defence with such possession. All indicated that the weapons in question were for his own use or for the use of his “buddies” to injure others in the event of a confrontation.

31.The Appellant cited the judgment in HKSAR v Lo Kok Leong[37]:

“18. The learned Magistrate was therefore entitled to find that the Appellant had no reasonable excuse for possession of the weapon for self-defence because there was no imminent danger of an attack and therefore the learned Magistrate could draw the reasonable inference from the Defendant’s caution statement that he intended to use the cutter to cause injury to another should the occasion arise because he was in fear of an attack.”

32.The Appellant argued that the observations of the Court of Appeal in Lo Kok Leung are precisely in line with the purpose of the legislation and the essence of the offence of “Possession of offensive weapons in a public place”, as already pointed out by the court in HKSAR v Yung Wai Shing and another[38]:

“32. The Magistrate’s observation was as stated in paragraph 19 above. I do not consider that there exists any material inconsistency or conflict between his observation and the defence case that D1 was in possession of the weapons in question for self-defence. The fact that the weapons concerned were intended for self-defence entailed that D1 would use the them in situations where he deemed necessary. This is exactly what the enactment of the offence is targeting and guarding against. ...

55 … one must bear in mind that the creation of this offence is to reflect the society’s intolerance against ordinary citizens equipping themselves with offensive weapons in a public place. Its main purpose is to promote a relatively safe social environment, and to prevent people from resorting to violence to resolve conflicts, or to impose punishment by themselves, in place of lawful means. This offence is preventive in nature, and offenders are subject to severe legal liabilities, which could be seen by the regulation on sentencing specified by the legislature. In other words, the mere act of possessing an offensive weapon already carries substantial culpability, even if it is for the purpose of self-defence”.

33.In summary, the Appellant submitted that in relation to question 1(a), the Magistrate should have taken into account the matters in question 1(a) as well as the above principles of law when considering the Respondent’s exculpatory statement of self-defence, but the Magistrate erred in law by failing to do so at all.

F2.    Respondent’s Response

34.On behalf of the Respondent, Mr Wong Chun Man Dick argued that the greatest difference between the parties was the interpretation of the Respondent’s statement under caution that he possessed the articles for “self-defence” purpose.

35.Given that the Respondent’s issue was whether the articles were offensive weapons as a matter of law, rather than relying on self-defence as a lawful authority and/or a reasonable excuse for possession, the Respondent submitted that the cases relating to reasonable excuse for self-defence (e.g. Wong Christopher Milton v HKSAR; HKSAR v Lo Kok Leong) were not applicable in this case.

36.In addition, the Appellant cited a number of cases (e.g. Patterson v Block; HKSAR v Fung Kam Dick Andrew; HKSAR v Chan Ming Lok, etc.) to suggest that the term self-defence could assist the prosecution in proving that the person concerned possessed the articles with intent to injure.

37.The Respondent argued that reliance on the above principle presupposed that the Respondent did purport to say that he had the articles in his possession at the time for self-defence (i.e. when attacked by another person, he attacked the other person to defend himself). A trier of fact must understand what a statement made by a defendant actually means, what it purports to mean, whether it is reliable, whether it is ambiguous, and so on, before he can conclude that the statement constitutes an admission and decide whether to rely on it for other inferences.

38.It was for this reason that the Magistrate in the present case first considered the contents of the Respondent’s statement and noted that the Respondent’s admissions were lacking particulars, ambiguous and capable of a wide range of inferences. It was clear that he did not consider the statements reliable and did not intend to give weight to them or use them as evidence to draw an inference of guilt.

39.The Respondent argued that the Magistrate gave weight to the Respondent’s detailed statements in the video-recorded interviews by considering them further, arguing that he did not necessarily intend to cause harm to others. Even if the relevant statements were admissible, it was entirely within the Magistrate’s power as a trier of fact as to whether to give weight or how much weight was to be given to the statements.

40.In fact, the Respondent’s reference to “self-defence” was not in the ordinary sense of self-defence and it was difficult to establish on the evidence that he had an intention to injure others. The first explanation given by the Respondent in the police note book as “guarding the nearby Lennon Wall and protecting himself”[39] was clearly different from the subsequent explanation of “guarding the nearby Lennon Wall and for self-defence”[40]. In relation to the meaning of “self-defence”, the Respondent also stated in the subsequent video-recorded interview that if he encountered “knifers” or assailants “armed with clubs”, he would “fend it off”, “shield himself” and to “avoid using force”.

41.The Respondent’s allegation that the police officers had repeatedly asked the Respondent to explain further the meaning of self-defence reflected that the actual meaning of “self-defence” uttered by the Respondent was to a certain extent ambiguous and therefore needed to be clarified. The Appellant arbitrarily assumed that the Respondent had an intention to injure by relying on the word self-defence without sufficiently examining the actual meaning, purpose and/or intention of the Respondent.

42.As could be seen from the Respondent’s overall explanation under caution, the term “self-defence” as used by the Respondent did not involve any element of wounding (“to protect oneself”, “to fend off”, “to avoid the use of force”, “to leave in a safe condition”), and that his intention was only to protect himself from being injured, which was defensive in nature, and was not for the purpose of attacking or counter-attacking. Therefore, the Respondent’s “self-defence” was very different from the defence of self-defence in other cases. The Respondent never admitted that he intended to injure and/or fight back.

43.Furthermore, the Respondent contended that the Respondent’s claim of “guarding the Lennon Wall”, as pointed out by the Magistrate, was in fact devoid of details and had no evidential value. Throughout the entire video-recorded interview, the Respondent was not asked what he meant by guarding and what actions he would take in order to do so. The prosecution could not use this one-sided statement to prove any fact relevant to the case. The Magistrate correctly found that these admissions did not assist the prosecution case.

44.Mr Wong submitted that the Respondent did not agree to the Appellant’s allegations in any way:

(a)  The word “guard” meant that he expected a verbal altercation or even a fight and therefore had to arm himself. These speculative assumptions, which were not based on any evidence and were not favourable to the Respondent, were grossly unfair to the Respondent and were not the only reasonable and irresistible inference to be drawn. How could the prosecution be sure, in the absence of precise information, that the Respondent would not merely give verbal advice and that he would act with force? Especially when the Respondent had made it clear that he would not attack others;

(b)  “The Respondent expected himself to be in a violent confrontation” and “he went to a place where he expected a violent confrontation to take place”. At best, his statement only reflected that he anticipated the possibility of an attack, and being attacked unilaterally was by no means a violent confrontation. Secretary for Justice v Szeto Ho Sun, cited by the Appellant, was an appeal against sentence and the Respondent did not consider that the Court of Appeal’s analysis of criminal liability on the unique facts of that case could be applied to this appeal against acquittal.

45.Overall speaking, in the Respondent’s mixed statement under caution, the incriminating part being an admission of possession of the articles in question and the exculpatory part being that he did not intend to injure anyone. The law does not oblige the trier of fact to discard exculpatory statements or to give them no weight. The Magistrate further relied on the principles of the relevant case law in his analysis that he was entitled to give weight to the exculpatory statement and that this finding of fact was justified because the Respondent had repeatedly given detailed explanations as to the purpose of the possession of the articles. The Magistrate correctly considered the Respondent’s low propensity to commit offences and his high credibility, having regard to his lack of criminal convictions. He did not err in law in choosing to give weight to the Respondent’s exculpatory statement, which was a permissible finding in this case.

F.3    Consideration by this Court

46.As set out in my simplified legal issues, questions 1(a) to (c) relate to the question of whether the Magistrate erred in considering whether the Respondent’s possession of the spanner and the hiking stick was with intent to injure.

47.As regards Question 1(a), although the Respondent argued that the Respondent’s reference to “self-defence” was not “self-defence” in the ordinary sense of the word, it is not clear to me why this is so.

48.“Self-defence”, as its name suggests, means self-protection or defending oneself. Admittedly, when a defendant alleges that he possesses or carries certain articles for the purpose of self-defence, he means that he does not mean to deliberately attack another person, but to defend and protect himself if he were under attack. Yet when a defendant has to use certain articles to protect himself, would he cause harm to the attacker?

49.I am of the view that the Respondent side has given a very narrow interpretation of what the Respondent claimed to be “self-defence”. I do not accept his submissions.

50.Moreover, having seen the spanner and the hiking stick in court, even the hiking stick could barely be said to be able to stop an assailant “armed with a club” from attacking the Respondent, I reckon that the hiking stick could hardly be used as a means to stop a knifer from attacking the Respondent. Neither can I see how the Respondent could have used the short spanner, which was about 20cm (8 inches) long and only showed a few inches in his hand, as a defence against a knife attack.

51.I fully accept the Appellant’s submission that the Respondent’s claim of “self-defence” was not established in this case.

52.The Respondent knew that he would go to the Lennon Wall with others and that he would “guard the Lennon Wall”. I agree with the Appellant that the Respondent was anticipating a violent confrontation with others, including being beaten by the “men in white”.

53.Although it appeared that the Respondent anticipated that he would be in conflict with others, the evidence did not show that the Respondent was under “imminent threat”.

54.Furthermore, why did the Respondent still need to get a short spanner from his “buddy” when he was already in possession of a hiking stick that he had prepared to use to stop others from attacking him? The short spanner could not defend him against weapons such as knives and clubs. In all the circumstances, the Respondent did not possess the spanner for “self-defence”.

G.1. Question 1(b): The Magistrate did not consider that the articles kept in the Respondent’s backpack were commonly used by demonstrators

55.In relation to question 1(b), the Appellant submitted that the Magistrate should have taken into account the other articles in the Respondent’s backpack when considering whether the Respondent’s possession of the spanner and hiking stick was with intent to injure.

56.The Appellant contended that the Court of Appeal in Chong Ah Choi had already pointed out that the circumstances surrounding the defendant’s possession of the articles in question form one of the factors to be taken into account. Indeed, in numerous cases involving offensive weapons, the court has repeatedly pointed out that a trier of fact should take into account other articles found in a defendant’s possession at the same time to determine whether the defendant possessed the articles with intent to injure. The Appellant cited a number of cases in support of its argument[41].

57.The Appellant submitted that overviewing the reasons for the Magistrate’s findings, the Magistrate failed to take into account the different articles found in the Appellant’s backpack at the same time.

58.The Appellant also emphasized that the present case has a background of social unrest and violent confrontations in 2019, and that the articles kept in the Respondent’s backpack, as demonstrated by the numerous cases cited by the Appellant, were exactly the sort of articles that would be used by radical demonstrators in a confrontation, and that they were also strong circumstantial evidence assisting to prove the Respondent’s possession of the spanner and the hiking stick was with the intent to injure. The Appellant submitted that if the Magistrate had correctly considered the contents of the Respondent’s backpack, the Magistrate’s finding that the prosecution had failed to prove beyond reasonable doubt that the Respondent’s intention to injure would have been impossible to reach and would have been perverse.

G.2   Respondent’s Response

59.The Respondent agreed to the legal principles in Chong Ah Choi. HKSAR v Chan Yiu Shing reiterated the relevant principles but the Respondent submitted that Chan Yiu Shing meant that the court had the power to consider those matters but was not obliged to do so because each case was unique. Even if the Magistrate had not taken the relevant consideration into account, no error of law would be constituted.

60.The Respondent submitted that the Magistrate also correctly considered and applied the principles[42] in Chong Ah Choi:

“44. ... the prosecution also confirmed that the article in this case was not ‘made or adapted for use to injure’, so the only issue to be considered was whether the respondent had possession of the article in this case with intent to injure. According to the relevant case law, in deciding this issue, the court needs to consider the nature and condition of the article itself, the circumstances surrounding the accused’s possession of the article, such as the time and place, the proper and reasonable use of the article at that time and place, whether the article was hidden, the accused’s behaviour and demeanour at that time, and the accused’s reaction to being found out or questioned, etc.”

61.The Respondent pointed out that the Magistrate emphasized that the articles were kept in the backpack. They had not been used nor taken out. All of this objective circumstantial evidence undermined the inference that the Defendant intended to injure anyone. If, as the Appellant suggested, the Respondent had expected a violent confrontation or even intended to injure someone, the items would not have been kept in the backpack in a manner that was not conducive to the Respondent’s use.

62.The Respondent submitted that the prosecution had never raised in the trial nor was there any relevant evidence to prove that there had been any unlawful assembly or other violent clashes near the place where the Respondent was intercepted. The prosecution had also not adduced any evidence on the actual circumstances near the scene, including whether there were any demonstrations or violent clashes. The Respondent submitted that the Appellant’s forced extension of Chong Ah Choi to the prevailing social atmosphere and the circumstances of the convicted persons in other cases was precisely to remedy the evidentiary shortcoming in the present case - the absence of solid evidence of harm to others.

63.The Respondent argued that the special feature of the Respondent’s case was that it was difficult to prove his involvement in unlawful assemblies or other violent conflict activities, either in time or in place. This was very different from the case mentioned by the Appellant.

64.As to the items other than those articles, such as the helmet, safety goggles, respirators, etc. (“other articles”), the Respondent agreed that these were articles commonly used by demonstrators, but that these other articles were deliberately kept together in the blue drawstring bag (even the gloves were kept inside the blue bag and were not used), which was in the Respondent’s backpack.

65.The Respondent argues that these “other articles” were not only kept separately from the hiking stick and the spanner, but also involved a “bag-in-bag” situation that made it more difficult to retrieve and utilize these articles. These two important factors further demonstrated that these other articles were irrelevant and did not help to prove whether the Respondent intended to injure anyone.

66.The Respondent cited a case to the effect that a judge’s failure to mention a particular matter did not mean that he had not taken that matter into account[43].

67.The Respondent submitted that although the Magistrate did not directly state in his ruling how he had considered these other articles in the Respondent’s backpack, it did not mean that he had not made relevant considerations nor was there any indication that the Magistrate had not considered them carefully. More importantly, as stated above, the other articles in the Respondent’s backpack were not at all relevant to the issue of whether he intended to injure anyone. Assuming that the Magistrate really did not consider that, he still did not err in law.

68.The Respondent referred to the Appellant’s list of six cases in which it claimed that the Respondent’s possession of articles commonly used by demonstrators was evidence of an intent to injure in the possession of an offensive weapon, but that the weapons in those cases were not inherently capable of being used for defensive purposes. Articles such as pepper spray, laser pens, bows and arrows, emitters, etc. were all capable of active attack at a distance, and therefore the defendants involved in those cases were highly likely to have possession with those articles with an intent to injure. On the contrary, the articles in this case, namely a spanner and a hiking stick, were not articles of a forceful and active offensive nature.

69.The Respondent agreed that the court might infer from the circumstantial evidence the Respondent’s intention to be in possession of the articles. The Respondent pointed out that the surroundings and circumstances (e.g. being at or near the scene of an unlawful assembly, having fled, confessing, etc.) in which the defendants were arrested in the above cases were poles apart from the present case and were not comparable.

70.The Respondent submitted that the Magistrate’s decision was one that could have been reached by any reasonable magistrate who had due regard to the considerations and gave himself proper directions. Whether the Magistrate took into account the other articles in the Respondent’s backpack, the Magistrate did not err in law.

G.3   Consideration by this Court

71.The Magistrate had not given sufficient consideration (or not clearly shown that he had given sufficient consideration) to the fact that the Respondent was carrying in his backpack articles commonly used by demonstrators.

72.I agree with the Appellant’s submissions in this area and reject the Respondent’s submissions.

73.Although most of the six cases cited by the Appellant involved defendants carrying articles different from those in the present case, the principles of law are common. The Magistrate should have made it clear that he had taken into account other articles in the Respondent’s possession at the material time. The Magistrate should and had to consider the social conditions at the material time (i.e. the social disturbances and violent clashes taken place in 2019) -- especially when the Respondent alleged that he went there to “guard the Lennon Wall”.

H.1. Question 1(c): The Magistrate did not consider the Respondent’s statements in the video-recorded interview which included an explanation of the concurrent possession of articles commonly used by the demonstrators

74.The Appellant argued that in considering whether the Respondent’s possession of the spanner and the hiking stick in question was with intent to injure, the Magistrate had failed to take into account the Respondent’s statements in the video-recorded interview, in particular the Respondent’s explanations as to the contents of the backpack that he was carrying at the material time.

75.In fact, the statements made by the Respondent in the video-recorded interview sufficiently demonstrated that he came prepared for a violent confrontation with the police or various other persons, e.g. he stated that he carried gloves to avoid leaving any fingerprints to prevent the police from collecting evidence; swimming goggles to protect his eyes when the police administered tear gas; and safety goggles to cover the swimming goggles; the 3M respirator was to avoid inhalation of tear gas; the helmet was to avoid being hit by bullets or stray bullets; and the six packets of saline were to wash the eyes in case of bleeding or being hit by tear gas. The Respondent also admitted that he left his residence at about 02:45 hours on the material day and wore a black shirt and black trousers until he was arrested.

76.Thus, for the purposes of question 1(c), as submitted by the Appellant, the Respondent’s statements in the video-recorded interview must have been part of the evidence that the court had to, and should have, taken into account in considering whether his possession of the spanner and the hiking stick was with intent to injure. However, in summarizing the reasons for the Magistrate’s findings, he failed to consider the relevant statements at all. The Magistrate therefore erred in law in failing to properly consider, analyse and evaluate the statements made by the Respondent in the video-recorded interview. If the Magistrate had correctly considered the statements made by the Respondent in the video-recorded interview, the Magistrate’s finding would have been impossible to reach (i.e. that the prosecution had failed to prove beyond reasonable doubt that the Respondent’s intent to injure), which was perverse.

H.2. Respondent’s Response

77.The Respondent stated that there was no evidence in this case that any of the other articles in the backpack, i.e. the rest of the articles in the blue bag (bag-in-bag), were ever taken out or used. In the absence of evidence of any unlawful assembly or even any violence in the vicinity, it was clear that the Respondent’s explanation was merely a description of their use and did not indicate any intention to use them at all relevant times in the case.

78.The Appellant emphasized the Respondent’s explanation of the purpose of the gloves (to avoid leaving his fingerprints and to prevent evidence gathering). The Respondent agreed that the Respondent’s version was potentially suspicious, but more critically, the Respondent did not admit that he had used the pair of gloves or intended to use them at all. In other words, the prosecution had no evidence to suggest that the pair of gloves was involved in causing injury to others. Whether or not the Respondent would have used the gloves at another time and in another situation, or even what he would have done with them, was speculative and irrelevant in the present case. The same was true for the other articles in the backpack and the Respondent had not admitted that he used them. The other articles in the backpack were kept in a blue bag (bag-in-bag) which further undermined and/or refuted the allegation that, as the Appellant suggested, the preparation for violent confrontation with another person was a matter of fact.

79.The Respondent argued that these articles and the explanation did not assist the court in considering whether the Respondent possessed the hiking stick and the spanner with intent to injure. Irrespective of whether the Magistrate considered the Respondent’s explanation for the other articles in the backpack, the Magistrate did not err in law.

H.3.   Consideration by this Court

80.I accept the Appellant’s submissions. The Magistrate did not give sufficient consideration to the explanation given by the Respondent in the video-recorded interview regarding his possession of articles commonly used by demonstrators. The explanation given by the Respondent was something that the Magistrate had to take into account in considering whether the Respondent’s possession of the spanner and the hiking stick was with intent to injure.

I.1     Question (2) (original question (d)): The Magistrate improperly gave weight only to the exculpatory part of the cautioned statement

81.The Appellant argued that the Magistrate gave weight to the Respondent’s exculpatory statement of “self-defence”, suggesting that the Respondent indicated that the articles in question were only meant for fending the assailant off in an attack, or that he wished to make it possible for everyone to leave in a safe condition without using force.

82.The Appellant contended that the objective facts simply do not support the Respondent’s assertion of “self-defence” as described above:

(a)  On that occasion (i.e. 2 September 2019 at about 5:00 am when the trio were reading the information on the Lennon Wall in Kwai Fong), why would the Respondent be attacked for no reason? Even if he were under attack, why did the Respondent need to stay at the scene to shield off the attack by others, instead of choosing to leave to avoid confrontation?

(b)  The length of the spanner was about 20cm (8 inches) and only a rounded iron head of a few inches would be exposed when it was held in the hand. How could the spanner be used as something to stop a “knifer” or a person “armed with a club”? Was it an inherent improbability for the Appellant to use the spanner to fend the assailant off in an attack?

(c)  Similarly, compared with knives and clubs, the hiking stick was not very hard in terms of material and non-threatening by appearance, so how could it “fend” someone off armed with knives and clubs, and how can it be used to confront enemies and to avoid using force?

83.The Appellant alleged that the Respondent was clearly saying that he was “guarding” the Lennon Wall with a spanner or a hiking stick to prevent people from tearing down or interfering with the propaganda information posted there, etc. If someone did so, the Respondent would certainly go forward to stop him. In anticipation of an altercation or even violence, the Respondent would have to arm himself. Therefore, his possession of the articles in question was certainly not for the purpose of self-defence.

84.Moreover, at the time when the Respondent and his “buddies” were intercepted, they had already “watched” and “guarded” the Lennon Wall, had finished their breakfast and were about to take MTR heading towards Kwai Fong MTR station, but why did the Respondent still carry the spanner instead of handing it back to his “buddies”?

85.The Appellant also pointed out that when the Respondent asked the two of them to go out at the Telegram, he said, “At the Telegram, we talked of going out and then to have breakfast, and then -- and then they -- and then we will see whether they would go for a student strike or what, because at that time I was hungry.” [44]

86.The Appellant argued that it followed from the above that the Respondent in fact wanted to engage in other social activities on or after that day, like a student strike and the like, and so it could be inferred that the Respondent wanted to keep the spanner for other purposes other than for self-defence.

87.The Appellant further submitted that in considering the Respondent’s mixed statement, the Magistrate did not follow the guideline in the cases of R v Sharp and HKSAR v Poon Hoi Wing[45], that is, as a matter of law, both the incriminating and exculpatory parts of a mixed statement are admissible in evidence to prove the truth of its contents. This does not mean that the court has to give equal weight to both parts. On the contrary, the court may give relatively more weight to the incriminating part as it was more probable and true, whereas the exculpatory part was only a defence to justify oneself, less weight or even no weight should be given.

88.The Appellant argued that a trier of fact must consider the incriminating and exculpatory parts of a mixed statement. However, in reviewing the Magistrate’s reasons for his findings, the Magistrate made no reference whatsoever to, let alone any analysis and consideration of, any of the Respondent’s incriminating statements, including, but not limited to, those set out in question 1(c).

89.The Magistrate also failed to analyse at all why he gave weight to the Respondent’s defence. For example, he did not analyse whether the Respondent’s assertion was consistent with the other circumstantial evidence. Indeed, as analysed above, the objective facts and circumstantial evidence simply did not support the Respondent’s assertion of “self-defence”, particularly bearing in mind that the Respondent was found to be carrying a large amount of other equipment to the scene at the same time. In any event, as indicated clearly from the above cases and the Specimen Directions in Jury Trials, since the exculpatory part was only to justify one’s defence, little or even no weight should be given.

90.By reason of the above, regarding question (2), in considering the Respondent’s mixed statement, the Magistrate erred in law in failing to consider or analyse the Respondent’s incriminating statement at all; and in failing to analyse why he accepted the Respondent’s exculpatory statement.

I.2.    Respondent’s Response

91.The Respondent relied on previous submissions. The Respondent argued that the other articles in the Respondent’s backpack and his explanation did not assist the court in considering whether the Respondent’s possession of the hiking stick and the spanner was for the intent to injure. Irrespective of whether the Magistrate had considered the explanation given by the Respondent in relation to the other articles in the backpack, the Magistrate still did not err in law.

I.3     Consideration by this Court

92.I accepted the arguments in the submissions put forward by the Appellant. In granting admissibility to the Respondent’s exculpatory statement in the video-recorded interview, the Magistrate did not give due consideration to the objective facts which did not support the Respondent’s assertion of “self-defence”. The Magistrate also failed to consider carefully the incriminating statements made by the Respondent in the video-recorded interview.

J.1.    Question (3) (original question (e)): The Magistrate’s judgment was “perverse”

93.In relation to question (3), the Appellant referred to the Court of Final Appeal’s decision in Li Man Wai v Secretary for Justice[46], where it was said that if a magistrate reaches a conclusion or a finding of facts which no reasonable magistrate, having due regard to the considerations and giving himself proper directions, could possibly have reached, this constitutes a “perverse” conclusion or finding which is an error[47] in law.

94.The Appellant submitted that if the Magistrate had considered all the evidence in the case, including the matters in question 1(a) to (c) and the statement under caution by the Respondent, the Magistrate’s conclusion or finding that the prosecution had failed to prove beyond reasonable doubt that the Respondent intended to injure was a “perverse” conclusion or a finding that could not have been reached by any reasonable magistrate who had due regard to the elements to be considered and who had given proper directions to himself.

95.Accordingly, the Appellant invited the appellate court to direct that the case be remitted to the Magistrate under section 119(1)(d) of the Magistrates Ordinance for the Respondent to be convicted of the offence of “Possession of an offensive weapon in a public place”.

96.Alternatively, if the court is of the opinion that the Magistrate has erred in law but has failed to make a clear finding on the Respondent’s intent at this point in time, the Appellant invites the court to remit the case back to the Magistrate with a direction to the Magistrate to reconsider the guilt or innocence of the charge in the light of the clarified view of the law.

J.2.  Respondent’s Response

97.The Respondent reiterated that the case was not devoid of circumstances or evidence that would lead a trier of fact to conclude that the Respondent had an intent to injure, but that, taking into account all the evidence in the case, the trier of fact could also reach the opposite conclusion - that the Respondent did not have an intent to injure. That being the case, since the Respondent’s intent to injure was not the only reasonable conclusion that the Magistrate could have reached, the Magistrate’s finding that the prosecution failed to prove beyond reasonable doubt that the Respondent had an intent to injure did not err in law nor was it “perverse”.

I.3     Consideration by this Court

98.I fully agree with the Appellant’s analysis and submissions. The Magistrate’s conclusion/finding in this case was “perverse”.

J.  Conclusion

99.I hold that the Magistrate had erred in relation to questions (1)(a)-(c) and (2) and that his finding was therefore “perverse”.

100.For the above reasons, I direct that the case be remitted to the Magistrate under section 119(1)(d) of the Magistrates Ordinance, Cap. 227, with a direction to the Magistrate to reconsider whether the Respondent is guilty or not of the charge in the light of the clarified points of law.

Mr. Edward LAU Wan Cheung, Senior Public Prosecutor, Department of Justice, for the Appellant

Mr. Dick WONG Chun Man, instructed by Messrs. Luk & Co., Brandon Solicitors, for the Respondent

Translated by the Court Language Section of the Judiciary and vetted by Mr Justin Yuen, solicitor.